Migot (Formerly Daudi Odhiambo Migot) v Otieno (Personal Legal Representative of the Estate of the Late Jemima Akinyi Oyare) (Environment and Land Appeal 57 of 2019) [2026] KEELC 5344 (KLR)

The certified proceedings showed the Appellant expressly conceded to the application, and the court allowed it by consent. A consent order has contractual effect and can only be set aside on grounds such as fraud, collusion, misrepresentation or mistake, none of which was pleaded. Separately, the appeal was filed more than thirty days after the Ruling with no extension of time. Even on the merits, re-opening favoured the constitutional right to a fair hearing and caused the Appellant no prejudice.

Section 45(1) prohibits any person from disposing of or intermeddling with the free property of a deceased person except under a grant of representation. The vendors, William Odongo Adero and Mildred Akinyi, had no grant and no capacity. The court distinguished Morris Mwiti Mburugu, holding that its equitable considerations apply in a succession cause where the court can protect an innocent purchaser in distributing the estate, not to validate a statutorily void disposition where the administrator did not participate and has taken the land himself.

Holman v Johnson did not apply because the counterclaim did not enforce the void sale; restitution arises independently of contract (Fibrosa). The three elements of unjust enrichment (enrichment, at the plaintiff's expense, unjust to retain) were established: the price enured to the family in meeting funeral expenses of a beneficiary; the Appellant took the land free of the purchaser; and he had initially accepted the sale. Privity of contract was inapposite since liability was restitutionary.

The purchaser entered with the family's consent, paid value and remained in peaceful possession, protected by the tribunal award maintaining the status quo; trespass presupposes entry without colour of right. A permanent injunction is discretionary and equity would not eject the purchaser before restitution. Mesne profits were neither pleaded with particularity nor proved. Interest from the date of payment was a proper exercise of discretion under Section 26 of the Civil Procedure Act.